Shah, R (on the application of) v Secretary of State for the Home Department

British Nationality Act 1981, section 4B, creates statutory conditions for registration as a British citizen. Where those conditions are not met, the Secretary of State has no discretion to waive or treat them as satisfied. An earlier administrative error cannot retrospectively create a citizenship status or alter the date on which another citizenship was lost. A passport granted following a later exercise of discretion takes effect from that exercise and has no retrospective effect. Perceived injustice caused by an earlier error cannot justify a contrary construction of the statutory scheme.

The claimant, a British Overseas citizen, sought permission to challenge decisions concerning his British Overseas citizen’s passport and his claimed entitlement to registration as a British citizen under section 4B of the British Nationality Act 1981. An earlier refusal of a passport had wrongly proceeded on the basis that he was not a British Overseas citizen. The Secretary of State later accepted that status but concluded that registration would fail because the claimant had also been an Indian citizen and had not lost that citizenship before 4 July 2002.

The claimant argued that the earlier error should be remedied by treating him as though a passport had been granted in 2001, thereby producing retrospective loss of Indian citizenship. He also relied on Articles 8 and 6 of the European Convention on Human Rights.

1. Permission refused. The challenges to the 2001 and 2003 decisions were brought substantially out of time, and the 2004 decision merely repeated the conclusion reached in 2003.
2. Section 4B(2) of the British Nationality Act 1981 imposes conditions for entitlement to registration. The Secretary of State has no discretion to waive those conditions or to treat them as satisfied. The claimant had to establish that he had no other citizenship and that he had not, after 4 July 2002, renounced, voluntarily relinquished or lost another citizenship through action or inaction.
3. The claimant’s Indian citizenship therefore remained decisive. The earlier error in refusing his passport application could not retrospectively produce a grant of a passport or retrospectively establish loss of Indian citizenship. Any later exercise of the Secretary of State’s discretion to grant a British Overseas citizen’s passport would take effect from that exercise.
4. The court could not itself exercise the passport-granting discretion. Judicial review of the 2001 decision could at most result in a declaration of the claimant’s British Overseas citizen status and reconsideration by the Secretary of State, neither of which could satisfy the statutory registration conditions retrospectively.
5. Article 8 afforded no assistance because the claimant had not established an unrecognised citizenship right. Article 6 was not engaged because determination of citizenship was not a determination of a civil right.